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July 9, 2012

Appeal waiver prompts federal judge to reject child porn plea deal

The Denver Post has this effective article on a notable recent ruling by a federal district judge to reject a plea agreement in order to preserve appellate review. The piece is headlined "Rejected Colorado child porn plea deal puts light on appellate waivers," and here are excerpts:

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.

Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison. He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years. Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn't sentence him to more than the negotiated range.

It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system. "Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions," Kane wrote.

Vanderwerff's case has been set for trial in early August....

Kane's refusal of the deal has thrown a light on the practice of negotiating appellate waivers into plea agreements. According to a 2005 study in the Duke Law Journal, appellate waivers are common across the country, occurring in as many as 90 percent of plea deals in some jurisdictions.

They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office. Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied....

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.

Kane, though, viewed the waiver dimly. "[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."

I have long thought appeals waivers (and related collateral review waivers) are among the most important and least examined aspects of post-Booker modern federal sentencing practices, with huge disparities based on different federal prosecutorial policies and practices and different judicial attitudes and approaches to accepting deals with such waivers. Right after Booker, as revealed by some posts linked below, I blogged a lot about such waivers and about my view that they are void as against the public policy reflected in Booker's embrace of reasonableness review. It seems as though Judge Kane's opinion (which I will link if/when I can find it on-line) reflects some of these sentiments.

UPDATE: A helpful reader sent me a copy of Judge Kane's opinion in Vanderwerff, and I have provided the document for downloading below. The opinion runs a to-the-point 11-pages, and it is today's must read. Here is one of many notable passages:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment. See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012). Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions. Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history. See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)). Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Comments

"Kane, though, viewed the waiver dimly. "[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."

1. Actually, it is NOT of dubious legality. The most fundamental constitutional right in all of criminal law -- the right to go to trial -- is rountinely sacrificed "at the alter of efficiency" in the standard plea bargain. This has been the case since at least Santobello more than 40 years ago.

2. Nor is the right to appeal a constitutional right. No part of the Constitution confers such a right, as every experienced lawyer knows (and most law students).

3. Plus the Tenth Circuit, which oversees Judge Kane, has approved appeal waivers, as none other than our host noted in his entry more than two years ago, "10th Circuit joins appeal waiver bandwagon," available here: http://sentencing.typepad.com/sentencing_law_and_policy/2005/05/10_circuit_join.html

Is Judge Kane confused about whether the district court is higher than the circuit court?

4. This was a particularly benign waiver, because unlike the original waiver (which I wrote and litigated in US v. Wiggins, 905 F.2d 51 (4th Cir. 1990)), in this case the defendant had an agreed-upon sentence cap. In Wiggins, and in most waiver cases, the defendant agrees to waive not knowing for sure how high the sentence can go.

5. Yet after all, if Kane wants to do this, it's fine by me. I agree with the defense side that we have too few trials and too many bargains. I'll be happy to see this defendant go to trial and get nailed for all the counts he would have avoided had Kane not been on his high horse.

Posted by: Bill Otis | Jul 9, 2012 9:11:09 AM

As to Doug's "UPDATE": Lower courts do not get to discard the holdings of higher courts simply because they believe that subsequent developments have undermined those holdings. The Supreme Court has said exactly that, although the name of the case eludes me right now.

That by itself means that Kane is out to lunch. But for however that might be, there is simply no plausible case that Booker undermined the uniform holdings of all the circuits endorsing the appeal waiver. The waiver was upheld because, since forever, litigants, including criminal litigants, have been held to have the right to waive EVEN CONSTITUTIONAL RIGHTS, such as the right to trial, in exchange for something they regard as more valuable to them (such as a big sentencing break). Booker did not change that one little bit.

Posted by: Bill Otis | Jul 9, 2012 10:11:33 AM

After reading the opinion, I get the impression that the judge simply disagrees with the prosecutor that 5 to 10 years is an adequate sentence and was looking for a way to reject the deal without calling the prosecutor out.

Erika :)

Posted by: Erika | Jul 9, 2012 10:44:19 AM

While Erika may be correct that the district judge thought the agreed upon sentence inadequate, he cannot under any circumstances depart from Tenth Circuit precedent simply because it thinks the underpinnings of that precedent have been brought into question. Changing the law of the higher court is a job for the higher court; following it until there is such a change is the job of the lower court.

"We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

If the USAO wants to put Kane back on his heels, it has but to use that quotation in its appeal brief to the Tenth Circuit.

Posted by: Bill Otis | Jul 9, 2012 11:04:24 AM

"no circuit court has revisited the enforceability of appellate waivers."

Really? Because I know for fact that the Second Circuit has rejected numerous different arguments about why these waivers should not be enforced in recent years (and I will go out on a limb and say that every other circuit has as well). So, really, the basic premise of this decision is flawed.

Posted by: NYC Lawyer | Jul 9, 2012 11:13:13 AM

To add to what NYC lawyer has said, the Tenth Circuit itself reviewed the enforcability of appeal waivers a little more than three years after Booker was decided, see, e.g., United States v. Rodriguez-Rivera No. 06-3386 (10th Cir., March 11, 2008). I would be shocked if it has not had more such cases after Rodriguez-Rivera, but I'm not inclined to do for Kane the reseach he should have done for himself.

Kane likes to wing it, but this time he has outdone himself. This is ego over law, pure and simple. Not for nothing are the defense lawyer and the AUSA in agreement.

Posted by: Bill Otis | Jul 9, 2012 11:32:36 AM

Here is a summary that Bill and I drafted a couple of weeks ago and submitted in a certiorari petition that challenges the validity of plea waivers -- at least under some circumstances. Okay, I take it back, Bill had no hand in this. It was a joke. Bill did not help me draft it . . . but it sounded pretty good for a minute!

I. There is a split of authority as to the circumstances
under which an appeal waiver may be enforced when
the plain language of the waiver does not limit the
parameters of the sentence.

The Second Circuit subjects appeal waivers to special scrutiny and will
often not enforce appeal waivers when, under the plain language of the plea
agreement, there is no limit on the judge’s ability to sentence. United States v.
Goodman, 165 F.3d 169, 175 (2nd Cir. 1999) (refusing to enforce a broad waiver
that would expose the defendant to “a virtually unbounded risk of error or abuse”
at sentencing where the waiver “purports to waive the right to appeal a sentence
within (or below) whatever guideline range the sentencing judge determines is
applicable” and indicating with this type of waiver “we have encountered more
difficulty.") (emphasis added); United States v. Rosa, 123 F.3d 94, 100-01 (2d Cir.
1997) (using scrutiny "above and beyond [that] applied to all pleas" when the
waiver does not cap the sentencing range).
Three circuits have specifically cited Goodman and rejected the Second
Circuit standards for enforcing appeal waivers. The Third Circuit specifically
rejected the approach of Goodman and adopted the standard utilized by the First
Circuit – whether the sentence involves a “miscarriage of justice.” United States
v. Khattak, 273 F.3d 557, 562-563 (3rd Cir. 2001) (rejecting Goodman and
indicating the gravity of an error and its character are of paramount importance in
determining whether the sentence involves a “miscarriage of justice” that should
be addressed regardless of an appeal waiver — stating there “may be an unusual
circumstance where an error amount[s] to a miscarriage of justice”) citing United
States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). The Seventh Circuit
specifically indicated that it refused to adopt Goodman because it would require
overruling Seventh Circuit precedent or at least would be inconsistent with that
precedent. United States v. Williams, 184 F.3d 666, 671 (7th Cir. 1999) (“To
adopt Goodman's rationale in this case could have the effect of either overruling
our prior decisions or at least casting serious doubt on them because we have
previously found enforceable waivers identical to Williams’”) (citations omitted)
The Tenth Circuit also rejected the Second Circuit’s approach and stated it was
contrary to Tenth Circuit precedent. United States v. Montano, 472 F.3d 1202,
1205 (10th Cir. 2007) (rejecting the defendant’s argument that the court adopt the
standards of Goodman, supra, and Rosa, supra – “in this Circuit we have
consistently and repeatedly held that broad waivers are enforceable even where
they are not contingent on the ultimate sentence falling within an identified
sentencing range” and indicating an appellate waiver that “permit[s] an appeal
only for those sentences beyond the statutory maximum” is normally enforceable.)
(several 10th Circuit citations omitted)
While not citing Goodman, the Sixth Circuit will enforce appellate waivers
that, by the plain language, waives the right to appeal any sentence that is within
the guidelines determinations of the district court as long as the sentence is not
“entirely at the whim of the district court.” United States v. Caruthers, 458 F.3d
459, 470 (6th Cir. 2006) (clause “waive[d] the right to appeal any sentence within
the maximum provided in the offense level as determined by the Court or the
manner in which that sentence was determined on the grounds set forth in 18
U.S.C. § 3742 or on any ground whatever”). The Fourth Circuit also enforces any
appellate waivers as long as the sentence is not “at the whim” of the district court.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (giving examples of a
sentence based on race or which exceeds the statutory maximum that would
violate this standard). The waiver clause in Marin had no restrictions regarding
the sentencing range that could be found by the District Court under the
guidelines. Marin, 961 F.2d at 494 n 1 (paragraph seven (7) of the agreement).
At least two other circuits, the First and D.C. Circuit, approach appellate
waivers in the manner indicated by the Third Circuit in Khattak, supra. Under this
approach, when there are no limits on discretion under the plain language of the
waiver, the waiver will be enforced as long as any sentencing errors do not result
in “manifest injustice.” “Manifest injustice” may depend on the impact the error
had on the defendant’s sentence. United States v. Soto-Cruz, 449 F. 3d 258, 261
(1st Cir. 2006) (“Some considerations that guide our determination [regarding a
manifest injustice] include the clarity, gravity, and character (i.e., factual or legal)
of the error; the impact of the error on the defendant and on the government; and
whether the defendant consented to the result.”); United States v. Guillen, 561
F.3d 527 (D.C. Cir. 2009) (appeal may proceed if the trial court’s “failure in some
material way to follow a prescribed sentencing procedure results in a
miscarriage of justice.”) (emphasis added).
Other tests or exceptions to appellate waiver clauses, when the waiver’s
plain language places no limits on the sentence, have also been stated. Some state
there will be review if the sentence is “illegal” or involves “plain error.” DeRoo
v. United States, 223 F.3d 919, 926 (8th Cir. 2000) ("defendants cannot waive
their right to appeal an illegal sentence or a sentence imposed in violation of the
terms of an agreement"); United States v. Rutan, 956 F.2d 827, 829-30 (8th
Cir.1992) (review possible for claim that sentence is not in accordance with the
negotiated agreement or is illegal); United States v. Schuman, 127 F. 3d 815, 818
n. * (9th Cir. 1997) (Kozinski, concurring) (listing some of the errors that survive
an appeal waiver)1; United States v. Hahn, 359 F.3d 1315,1329 (10th Cir. 2004)
(illegal sentences that are subject to appeal despite a waiver include “error[s that]
satisfy the fourth prong of the Olano plain error test. See Olano, 507 U.S. at 732,
113 S.Ct. 1770 ("[T]he error [must] seriously affect[] the fairness, integrity or
public reputation of judicial proceedings[.]") (emphasis added) (internal
citations omitted). Note that Hahn was cited when the Tenth Circuit indicated its
approach was inconsistent with the Second Circuit approach. Montano, supra,
472 F.3d at 1205.

Posted by: Tim Holloway | Jul 9, 2012 11:42:25 AM

Tim Holloway --

I'd be delighted to see your cert petition granted -- maybe you should have had me help draft it after all. I'm the Godfather of appeal waivers, and up to now I have had to be content with saying that my baby has been kissed by all the circuits. I'd be thrilled to add SCOTUS to the list.

Good luck!

Posted by: Bill Otis | Jul 9, 2012 12:06:04 PM

i think what it all boils down to is the judge got his panties in a wad becasue some soon to be CON had the gaul to tell him what he could do in his court as far as a sentence goes.

far too many times suckers in the federal system sign off on a plea CONTRACT with little or no guarantee the judge will follow it...this time he would have been REQUIRED too...that just pissed him off!

and i STILL hate this retarded captcha crap!

Posted by: rodsmith | Jul 9, 2012 12:09:06 PM

Bill,
Thanks for wishing me good luck. My first thought, with the suggestion that both of us could work on a certiorari petition like this, was that you would be leaning towards saying they are valid under all circumstances and I would be leaning towards saying that it was not valid under the circumstances of my case. I realize that, at the certiorari stage, the primary purpose is to point out a question that needs to be resolved or upon which there should be guidance for the lower courts. However, even at that stage, I think there is still some element of suggesting the correct resolution of the case.
Then my second thought --- Big Daddy Otis might be irritated that his appeal waiver clause was not put together so well in this case. It really lacked clarity. One judge in the Court of Appeals agreed that the plain language did not result in a waiver. Also, I thought the nature of the claimed underlying errors could not be within the scope of that waiver or even a properly drafted waiver.

Posted by: Tim Holloway | Jul 9, 2012 12:53:03 PM

Actually, I am not sure the judge in the Court of Appeals indicated the "plain language" did not result waiver. However, she indicated there was no waiver. I think she stated something to the effect that, at best, the language was ambiguous. However, it was not a published decision --- a fact that I believe hurts my odds for a certiorari grant.

Posted by: Tim Holloway | Jul 9, 2012 12:55:48 PM

Tim --

"Then my second thought --- Big Daddy Otis might be irritated that his appeal waiver clause was not put together so well in this case."

One really annoying thing about getting older and moving on is that you know full well your successors are going to screw it up.

Oh well. At least I got out before Booker.

The major problem in getting cert at this point is that the waiver has been around so long, and in such a variety of different forms, that my guess is that SCOTUS has already decided to live with the variations as not sufficiently important to warrant its time.

Yours truly,

Big Daddy

Posted by: Bill Otis | Jul 9, 2012 2:12:41 PM

The plea bargain is a contract, and the appeal waiver is negotiable. I don't see the controversy. The appeal waiver should not be a hidden term. It should be clearly explained by the defendant's own lawyer along with its implications. Appeals can be more expensive than a trial, and should be part of the bargain.

From an utilitarian view, appeals are a search for a loophole in the law, and not a dispute about the truth, guilt vs. innocence, or any other substantive point. Therefore the waiver will not damage justice.

Here is the real problem with appeals. They should be substantive, to insure we do not have the wrong guy, despite the voluntary admissions. If appeals ever get to be substantive, they cannot be carried out by know nothing judges without investigative skills. They must be carried out by experienced investigators reviewing all evidence. This has never taken place, but must.

Seems like some of y'all are missing the point of Judge Kane's opinion. A judge has broad discretion to accept or reject a plea agreement. For instance, a judge may reject a plea which it believes is too lenient even if the government is fine with the deal. Here, Judge Kane did not hold that appeal waivers are illegal. He therefore did not contradict the holdings of appellate courts which have held that appeal waivers are legally permissible in most (but not all) cases. He simply held that the appeal waiver in this case was not appropriate for the reasons he gave. One may disagree with these reasons but it seems to me that the rejection of the plea on this basis fell well within the court's discretion.

Posted by: Fed Defender | Jul 9, 2012 4:11:53 PM

Fed Defender --

"Judge Kane did not hold that appeal waivers are illegal...He simply held that the appeal waiver in this case was not appropriate for the reasons he gave."

The problem is that "the reasons he gave" amount to a finding that the prior Tenth Circuit (and other circuits') holding approving exactly this brand of waiver are no longer good law in light of what he took to be the ways in which Booker changed the landscape. And that is, for any practical purpose, a holding that appellate waivers that would have passed muster in the Tenth Circuit prior to Booker no longer do so -- in other words, that they are indeed "illegal," whether or not Kane used that precise word.

As I have already noted, Kane's view of Booker is misguided as respects its effect on appellate waivers. But even if I'm wrong about that, it is, as the Supreme Court has said, up to the higher court, not the lower one, to say that subsequent developments in the law nullify standing higher court precedent.

Because Kane rested his rejection of the plea deal and waiver on a view of the district court's "discretion" inconsistent with the judicial pecking order -- a point I assure you the Tenth Circuit will be quick to see -- he abused what (I agree) would ordinarily be his broad discretion as a district judge to reject the agreement.

If the government and/or the defendant appeal this, I'll be you $100 right now that Kane gets reversed.

Deal?

Posted by: Bill Otis | Jul 9, 2012 4:56:38 PM

Bill, I'm not sure your reading of the judge's opinion is accurate - to me, it seemed that Judge Kane rejected the waiver because the government was essentially giving nothing of meaningful benefit up.

As I read the opinion, the statutory maximum sentence for the remaining charge was 20 years - under the child pron guidelines it is likely that the guideline range was likely 20 years. Had the defendant plead guilty to all counts or been convicted at trial, the result would also be a 20 year sentence. However, as the judge pointed out, he was free to ignore the top recommended sentence of 10 years and sentence the defendant to 20 years. He could then appeal the sentence because the waiver would not apply, but because it is likely that 20 years was the guideline range, the defendant would no doubt lose.

If for some reason, the judge believed that the 5 to 10 year sentence was inadequate (and given that this is someone who was in possession of several child porn images which were all of girls between the ages of 8 and 11 - and he was caught when an 11 year old girl he admitted to molesting "hundreds" of times made an outcry which led to the investigation it is likely that the judge would if anything give an above guidelines sentence) then the deal really wasn't a deal at all - the judge could still give the max sentence (which oddly seems to have been the max sentence for the one charge and the three charges together - maybe I am misunderstanding things). It seems much more honest to reject the deal than the enter the deal and then give the defendant a max sentence. I admit that I'm spectulating here, but I believe that the detailed factual statement is included in the opinion solely to say how bad the defendant is - when you see factual statements like that it is almost always "defendant loses."

Now I could be totally wrong in my read here, but that is the impression I got from reading - I think that what the judge is saying is that because he remains free to sentence the defendant to the same statutory max he'd face without the plea deal that hte government essentially wasn't giving anything up in return for the appeal waiver.

Erika :)

Posted by: Erika | Jul 9, 2012 5:34:50 PM

Erika --

Yes, we read Kane differently. I think he rejects the waiver for the reasons Doug and Fed Defender suggest -- that it's against public policy, and against legal policy too, as he views legal policy to have changed post Booker.

But whether you're right or they're right, I'll offer you the same $100 wager I offered Fed Defender: If either or both sides appeal, Kane gets reversed.

Posted by: Bill Otis | Jul 9, 2012 6:18:09 PM

Bill,

I thought the judge was trying to say that Booker created a lot of upheaval in the federal sentencing world (doubt you'd disagree) and that as a result there were a lot of novel issues which appellate courts would need to address to bring some consistency and order to the "common law" of federal sentencing but that widespread appeal waivers would stop these issues from being heard and thus thwart the development of the law. In other words, Booker gave courts new reason to question the wisdom of appeal waivers, not their fundamental legality.

Must admit though I didn't give the opinion the world's most in-depth reading so can't say your take is wrong. Plus, I learned long ago to never bet against an appeals court accepting an AUSA's interpretation of the law.

Posted by: Fed Defender | Jul 9, 2012 6:23:10 PM

Well, as a practitioner, I would not hesitate to advise a client to waive his right to appeal in return for a real plea bargain like the one in this case. Even though I think it's immoral to charge mere downloaders with the offense of "receipt", which doubles the maximum penalty over mere possession, the law allows it. So, a lawyer would be ethically challenged not to urge his client to accept a plea agreement that limits his exposure to 10 years, when the guidelines in a case like this easily can approach the maximum of 20 years. The right to appeal is a small price to pay to cut a sentence basically in half, especially given the appellate courts' reluctance to second-guess trial judges.

All too often, defendants are offered plea agreements where they are asked to waive their right to appeal in exchange for little more than a promise to recommend a guideline sentence--with no commitment from the Government regarding the guideline provisions that would apply. Such agreements don't even make good toilet paper (they're not very absorbent, if you have to know). I'm surprised how many defendants accept these agreements.

Posted by: C.E. | Jul 9, 2012 11:04:21 PM

Fed Defender --

"I thought the judge was trying to say that Booker created a lot of upheaval in the federal sentencing world (doubt you'd disagree) and that as a result there were a lot of novel issues which appellate courts would need to address to bring some consistency and order to the 'common law' of federal sentencing but that widespread appeal waivers would stop these issues from being heard and thus thwart the development of the law."

Exactly that argument was raised against the original appeal waiver shortly after I started having it written into the EDVA plea agreements in 1988, a matter of months after the Guidelines became effective. And the argument had more punch to it then, when the entire concept of guideline sentencing was new to federal law, than it does now, when Booker kept the existing guidelines but changed them from mandatory to discretionary. That is a big change for sure, but not nearly as big as jumpiing from an anything-goes system to a guidelines system.

The courts of appeals, including the Tenth Circuit, nonetheless concluded that the waiver would not do so much to impede "development of the law" that it could not legally be put into the bargains and enforced in court. A fortiori, if Kane is hoping to get by on an impede-the-development-of-the-law theory similar to, but not as compelling as, the one that got uniformly rejected a generation ago, he's out of luck.

P.S. Personally, I wouldn't try telling a circuit judge that he doesn't have a sufficient number of post-Booker guidelines cases coming his way to develop the law, and that he needs a bunch more. What he will do is turn red and growl at you.

Posted by: Bill Otis | Jul 9, 2012 11:08:21 PM

Bill,

I basically agree with everything you wrote. Appeal waivers are generally legal and a district court who held otherwise would be swiftly reversed. With that backdrop, here is a question I'm genuinely curious about. Do you think a district court would ever have the discretion to reject a plea in an individual case solely because it contained a appeal waiver?

For instance, suppose some super conscientious district judge knew that the case would present unusually complex or novel issues and wanted to make sure a higher court would have the chance to "check his work" to make sure he got it right. A bit fanciful perhaps but you get the idea. Could a court in effect say I'm OK with appeal waivers in general but not in this particular case?

Posted by: Fed Defender | Jul 9, 2012 11:42:19 PM

Fed Defender --

"Do you think a district court would ever have the discretion to reject a plea in an individual case solely because it contained a appeal waiver?"

Well, "ever" is a long, long time. As I have often said here, there are no facts about the future. So I could not say the possiblility is foreclosed, in the hypo you offer, or other circumstances.

The only point in my prior post was that, if Judge Kane thinks he's going to get by on a "we-can't-impede-the-development-of-the-law" theory in the case at hand, he's going to get disappointed in the Tenth Circuit, just as every district judge I ever heard of who tried that same theory a generation ago (and with a stronger case, given the guidelines' then-total novelty) got disappointed.

Posted by: Bill Otis | Jul 10, 2012 12:01:07 AM

Great thread here, folks, and I have some basics questions for Bill to get his views on district court discretion/authority and DOJ commitment to the rule of law in this context. The questions stem from the fact that one district judge in SD Ohio is vocal and consistent in his position that he will never accept a plea agreement that includes an appeal waiver. I do not think this judge is eager to take on post-Booker Sixth Circuit precedent that permits these waivers, he just thinks it is bad/harmful practice for his sentencing decisions to be made fully immune from appellate review via an appeal waiver in a plea agreement.

So, my genuine questions for Bill (or others) are:

1. Do you think this SD Ohio district judge is being lawless by categorically refusing to accept plea agreements with appeal waivers, or do you think he is acting within his lawful discretionary authority?

2. If you think this judge is abusing his discretion, do you think the local SD Ohio USA (or Main DOJ) has a responsibility to seek a mandamus action in the Sixth Circuit to force this district judge to accept plea agreements with appeal waivers?

3. Do you think district judges having disparate plea acceptance policies is as big a concern as when they reach disparate sentencing outcomes? That is, I wonder if you think disparity in sentencing process is on par with you concerns about disparity in sentencing results.

Posted by: Doug B. | Jul 10, 2012 3:54:54 AM

1) The appeal waiver reduces lawyer government make work for 3 lawyers. So the judge opposes. The appeal waiver is the opposite of lawyer rent seeking. The opposition of the judge is in bad faith. The judge should write a disclosure that his decision furthers his economic self-interest and should be judged accordingly. In the absence of procedural and substantive unconscionability, he is cancelling a valid contract to generate lawyer fees, including his own salary. The failure to disclose that conflict of interest prior to the decision is grounds for judge disqualification. No defense lawyer will ever assert this defendant right because of their own conflict of economic interest. Conflict of interest is a synonym for stealing by middle class, intelligent people.

2) I don't know the origin of the limitation of appeals to errors of law, however, that limitation is also from the lawyer Twilight Zone. It is far more important to the law and justice to review errors of facts and verdict. Judges are know nothing lawyers, who get impeached for just passing by the scene of the matter before them. Judges are triply oppressed by the lawyer hierarchy, if the public is oppressed, and the lawyer doubly oppressed.

Appeals should be carried out by seasoned investigators, paid by the court to be objective and to find flaws with the factual verdict. Judges should also be allowed to investigate, often being the most experienced person in the court. I understand their natural bias favoring the prosecution, but they should just be removed if their results are flawed too often. These investigators should have access to full time recordings of jury deliberations. If distortions took place from bullying or undue influence by one member, they should have the ability to cancel the verdict and call a mistrial. After the first secret ballot, the jury vote has zero validity. It just reflects the view of the bully and the rest of the jury that just wants to go home. These investigators should have a list of cognitive biases to test the deliberation. Any check mark violates Fifth Amendment Due Process and Equal Protection.

http://rationalwiki.org/wiki/List_of_cognitive_biases

The Innocence Project makes the American appeal process looks stupid. Their work should be done by the appellate courts, as it was in Italy.

http://www.cbsnews.com/2100-202_162-20114867.html

It is a bad day when the Italian judicial system makes the American judicial system look stupid. Their judges are professionals, not know nothing lawyers who lost an election, and are getting a cush job from their elected friends. They are inquisitorial, and the brightest people in the court. And an appeal means a thorough review of the facts, not of loopholes in the law.

Some Italian judges are heroic and get martyred by the Mafia, the people Claudio seeks to protect. In Italy, there is a busy death penalty for heroic inquisitorial judges, and full protection for mass murdering organized crime kingpins, thanks to the likes of Claudio. Why can't we have judges like that, instead of the one in this post?

1. Lawless is not the right term, but I think that by categorically refusing to accept an agreement with a waiver provision the judge could be abusing his authority in cases where the waiver might be a benefit to the defendant. If the government were to stipulate that a defendant should not be a career offender or is only responsible for a certain amount of drugs/money under the Guidelines in exchange for the waiver, then the defendant could have a legitimate interest in giving up that right.

2. Any right to mandamus would more properly belong to the defendant (see above) and not the government. The problem with these waivers is that the government treats them as a default position and not something that they require in exchange for something meaningful. But that needs to be looked at on a case by case basis, and the defendant should be the one stepping up and saying "I want this because it is best for me" instead of the government saying "we want to use this as an offensive weapon."

Posted by: NYC Lawyer | Jul 10, 2012 8:27:12 AM

Doug --

"Great thread here, folks..."

All credit to participants on the defense side who are into analysis and precedent rather than bomb throwing. It's amazing how enjoyable and educational a thread can be when it leaves the "Nazi!" and "bloodluster!" stuff out of it, and when there's no mention of body parts and bodily functions.

"[O]ne district judge in SD Ohio is vocal and consistent in his position that he will never accept a plea agreement that includes an appeal waiver. I do not think this judge is eager to take on post-Booker Sixth Circuit precedent that permits these waivers, he just thinks it is bad/harmful practice for his sentencing decisions to be immune from appellate review."

Three thoughts. First, isn't it more up to the appellate court, not the district court, to decide whether sentencing decisions are so dubious as uniformly to be in need of review?

Second, didn't the Sixth Circuit know when it approved these waivers that there would be (much) less opportunity for it to review lower court sentencing practices? If it did -- which is all but certain -- why does the district court feel like it needs to rush in where the higher court, having had the opportunity to consider the matter, prefers not to tread?

Third, isn't the district court putting the intellectual cart before the litigating horse? The puropose of litigation is not to educate judges. The purpose is to give just outcomes to litigants. Where the litigants are satisfied that they have reached a just (or at least an acceptable) outcome -- settlement being the disposition of almost all cases, civil and criminal -- shouldn't that end the matter, absent exceptional circumstances? And if it should, isn't a blanket policy of refusing plea bargains with waivers an abuse of discretion?

"Do you think this SD Ohio district judge is being lawless by categorically refusing to accept plea agreements with appeal waivers, or do you think he is acting within his lawful discretionary authority?"

I don't know that I'd say "lawless" -- that's harsh -- but I would say its very questionable for a district court categorically to refuse to accept a plea bargain containing a provision the appellate court approved years ago. If I were the US Attorney in that Office, I would try to get this matter before the Sixth Circuit. How that would be done is a tricky question (although mandamus looks reasonably promising, as you subsequently say).

It seems to me that a district court's decision ALWAYS to reject appeal waivers would be like a decision ALWAYS to reject government motions for a substantial assistance departure. Prefabricated decisions like that are not so much an exercise of discretion as a refusal to exercise it. If this kind of blanket practice ever got before the Sixth Circuit, I'm pretty sure it would be toast.

"If you think this judge is abusing his discretion, do you think the local SD Ohio USA (or Main DOJ) has a responsibility to seek a mandamus action in the Sixth Circuit to force this district judge to accept plea agreements with appeal waivers?"

It might be the case that there is something going on in that district that I'm not aware of that dissuades the USA from taking it up. From the limited information available to me, I would try mandamus, yes.

"Do you think district judges having disparate plea acceptance policies is as big a concern as when they reach disparate sentencing outcomes?"

The word "disparate" covers far too much ground for me to formulate a sensible answer. I think a particular judge who effectively refuses to recognize the circuit court's approval of a particular, standard plea provision -- and who apparently is alone in the state in doing so -- is sufficiently out of step as to be a significant concern, yes. As to whether procedural disparity as a general matter is more worrisome than outcome disparity -- wow, I can't even approach formulating an answer to that, since, to start with, it asks for a standards-free comparison between apples and grapefruit.

Posted by: Bill Otis | Jul 10, 2012 9:20:48 AM

I believe you lawyers are chasing your own tails. This may be good law, but it is certainly poor public policy. Prosecutors that do this need a good supervisor.

Posted by: Tom McGee | Jul 10, 2012 9:49:35 AM

Tom,

Well, as a defender, I certainly agree they are poor policy, legal or not. I understand their utility to a prosecutor. Nobody wants to waste time doing frivolous appeals and I must admit appeal waivers cut down on those. Unfortunately, they also cut down on meritorious appeals. I have had clients who are definitely the victims of serious sentencing errors which went uncorrected because of the waiver. That's a tough pill to swallow.

So while I don't begrudge the government's desire to limit meritless appeals, the blanket, ironclad, non-negotiable appeal waivers which they often insist on are overkill. When appeal waivers first came on the scene, prosecutors were much more willing to make exceptions in particular cases or to stipulate in the plea agreement that the defendant could appeal certain specified issues the parties knew were close calls. This wasn't ideal but I think it is better than the "take it or leave it" appeal waivers we have now (which by the way bind the defendant but not the government). In my view, a more flexible policy would preserve almost all of the benefits of universal appeal waivers but would avoid their most egregious costs.

Posted by: Fed Defender | Jul 10, 2012 12:29:45 PM

For what it is worth, I know of at least one regular federal practitioner who will do pleas straight up without an agreement rather than agree to an appeal waiver clause. At least I think this is done with some of the judges, but perhaps not all of them.
Also, some plea agreements do have clauses preventing the government from appeal unless X occurs.
As for this being poor public policy, I too have questioned the wisdom of doing these . . . at least on such a large scale.

Posted by: Tim Holloway | Jul 10, 2012 1:27:07 PM

Tim --

"For what it is worth, I know of at least one regular federal practitioner who will do pleas straight up without an agreement rather than agree to an appeal waiver clause. At least I think this is done with some of the judges, but perhaps not all of them."

I hope your practicioner friend (1) fully explains to his clients the benefits they might be giving up by a refusal to negotiate with the government, and (2) that the majority of defense lawyers engage in such negotiation, often with favorable results. I would think it's the client's rights and interests, rather than the attorney's indignation about what he views as government overreach, that should tell the tale. That was true before this Term's decision in Lafler, and is all the more so now.

Posted by: Bill Otis | Jul 10, 2012 3:05:21 PM

Bill, with regard to taking a plea without the agreement that contains an appeal waiver, I think the question of doing this was case-specific and that the idea was that the potential plea agreements (that contain the waiver) do not provide much of a benefit or any real benefit as compared to a plea without the plea agreement -- but with the right to appeal still intact. I think the issue was more like a risk-reward type analysis rather than indignation regarding plea waivers. I can only assume that the attorney explains what is being offered in the potential plea agreement and what value the attorney perceives by each of the two routes for a plea.

Posted by: Tim Holloway | Jul 10, 2012 3:26:08 PM

Bill --- It seemed like there may have been at least one example where the plea agreement left the judge as free or almost as free to do what the judge wanted as a plea without an agreement. The difference being that the plea without the agreement allowed for appellate review. If you look at the cases I cited in the split of authorities from my certiorari petition, I believe that such appellate waivers would be upheld by most of the Circuits (except for the 2nd Circuit) -- at least as long as someone could arguably find some consideration for the agreement. For instance, what if the plea agreement states that there can be no waiver if the sentence does not exceed the guidelines as found by the District Court and the government will not appeal as long as the sentence is not below the guidelines as found by the District? What if you believe the court generally will stay within the guidelines anyway but believe there is a significant risk that the District Court will make an improper guidelines determination? Did I explain that such that it makes sense (it does to me, but the thought was already in my head and this paragraph seems pretty wordy)?

Posted by: Tim Holloway | Jul 10, 2012 3:41:33 PM

I should have said "except for the 2nd Circuit" under some circumstances.

Posted by: Tim Holloway | Jul 10, 2012 3:56:19 PM

Tim --

Yes, I think I understand it, thanks.

My experience in EDVA was that defense counsel pretty well trusted and accepted the PO's guidelines calculations, and the court nearly always handed out a sentence at or near the bottom of the range. The consequence was that the great majority of defendants (correctly) viewed the overall benefits of the bargain, even with the waiver, as exceeding the benefits of pleading straight up and preserving (usually worthless) appeal rights.

In the atypical case where the defendant feared either an incorrect calculation, or thought the judge was going to slam him, then of course he could plead straight up or go to trial. I had no problem with either.

(As I have long said here, as a theoretical matter I dislike plea agreements, but as a practicing AUSA, that's the way the system works).

Posted by: Bill Otis | Jul 10, 2012 4:10:39 PM

In my district at least, I think far too few defendants plead straight-up. Our standard plea agreement requires an appeal waiver and in return the government will drop a meaningless count or two and stipulate to acceptance which the defendant will almost certainly get anyway.

Of course, sometimes the government will make a real concession- drop a 924(c) or something- and in those cases, swallowing the appeal waiver is a small price to pay to secure the deal.

In many cases, though, the defendant is getting nothing at all out of the deal but is giving up something potentially very valuable- his right to appeal- if his sentencing goes south. However, if the defendant accepts such a bad bargain the fault lies with his lawyer, not the prosecutor.

Posted by: Fed Defender | Jul 10, 2012 4:35:16 PM

i'm with you. Sorry no plea agreament that does not include some guranteee on sentence is a joke! if not a CRIME!

Posted by: rodsmith | Jul 11, 2012 3:20:03 PM

A response to Mr. Otis.

"Nor is the right to appeal a constitutional right. No part of the Constitution confers such a right, as every experienced lawyer knows (and most law students)."

Actually, it is a constitutional right through procedural due process. To e sure, it's not a substantive right, but that conceptual difference is irrelevant here: the fact is, the Supreme Court and lower courts have treated the right to appeal as a constitutional one via procedural due process.

"Actually, it is NOT of dubious legality. The most fundamental constitutional right in all of criminal law -- the right to go to trial -- is routinely sacrificed "at the alter of efficiency" in the standard plea bargain."
"[T]here is simply no plausible case that Booker undermined the uniform holdings of all the circuits endorsing the appeal waiver. The waiver was upheld because, since forever, litigants, including criminal litigants, have been held to have the right to waive EVEN CONSTITUTIONAL RIGHTS, such as the right to trial, in exchange for something they regard as more valuable to them (such as a big sentencing break). Booker did not change that one little bit."

Actually, there is a plausible argument. First, you assume that the right at issue is qualitatively the same as other rights a defendant may forfeit. That is, you assume that it's a right that implicates individual interests, and the waiver of that right causes only individual harm. But, as some have recognized, allowing such waivers has separation of powers problems; and this is where your statement about Booker becomes problematic.

The logic and language Booker and subsequent cases strongly suggest—indeed, it's difficult for me to conclude otherwise—as a mitigation of its striking of the mandatory provision, the Court showed deference to Congress by ensuring that the policy preferences embodied in the Sentencing Reform Act would still be manifestly respected via vigilant appellate review. In Rita the Court even discussed how appellate review is a crucial process in enabling the Sentencing Commission to refine the Guidelines to satisfy the various policy goals. When the federal courts enforce appellate waivers, they forfeit their responsibility to respect the policy preferences of Congress, something the Court has emphasized lower courts must do even in light of the striking of the mandatory provision. This is why, for example, district courts are still required to properly calculate Guideline ranges as the statute requires; that's not a matter of "discretion."

This is more than a "plausible" argument to me; it's compelling in light of the Court's attempt to respect every aspect of the original Guidelines minus the mandatory provision for the sake of comity with Congress.

Posted by: Edward Cantu | Jul 26, 2012 7:19:51 PM

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